Matthies v. Mastromonaco,DO: The Right to Be Informed, or Research Findings Come Home to Roost.
By Anthony Rosner, PhD, LLD [Hon.], LLCPerhaps the first principle of FCER, in addition to what the chiropractic profession has for decades maintained is essential to the welfare of the patient, is the sanctity of information. To compromise that principle, or what has essentially become an inalienable right of the patient, leads to an ethical (and sometimes legal) quagmire.
We have seen this phenomenon most notably in the past with the resolution of the Wilk case. Judge Susan Getzendanner found no less than four allopathic defendants (American Medical Association, American College of Radiology, American College of Surgeons and American Academy of Orthopedic Surgeons) guilty of an illegal conspiracy. She enjoined the first three parties to prevent them from impeding professional associations between their members and chiropractors.1 The intention was to permit unrestricted referrals of patients between the allopathic and chiropractic professions, empowering the patient with additional options of health care and overcoming what had essentially become a restraint of trade.
Just six months ago, this landmark event in chiropractic history appeared to have received an exclamation point. A unanimous decision was handed down by the Supreme Court of New Jersey, upholding a lower court decision, which vouched for the patient's right to receive no less than a complete offering of relevant information from the attending physician. To receive less now appears to border on malpractice.
This particular saga began on August 26, 1990 with a fall and hip fracture by 81-year old Jean Matthies in her apartment in Union County, New Jersey. Edward Mastromonaco, an osteopath and board certified orthopedic surgeon, was called in to consult on Jean's care and treatment. Deciding against surgery, based on the patient's osteoporosis, generally frail condition, and a stroke suffered 40 years earlier, Dr. Mastromonaco decided against pinning his patient's hip. He recommended bed rest to allow her to return to limited use of her right leg.
After a short period of following her doctor's orders, the height of Ms. Matthies' right femur displaced, resulting in a shortening of her right leg and a continuing inability to walk. Five years after her initial injury, and following two hip replacement surgeries, Ms. Matthies is still confined to a bed or chair and is fully dependent upon others.
Understandably, Jean Matthies sued Dr. Mastromonaco on two grounds: (I) he deviated from accepted standards of medical care by failing to pin her hip at the time of injury; (II) by specifically failing to disclose the option of surgery, he negligently failed to obtain her informed consent regarding bed rest as an alternative. Although Dr. Mastromonaco argued that informed consent is irrelevant in noninvasive treatment cases, his conjecture was rebuffed by the appellate division and ultimately by the state Supreme Court. Although Dr. Mastromonaco appeared to avoid being charged with "deviating from the standard of medical care" by failing to pin Matthies' hip at the time of injury, the question of standards of medical care came back to blindside him on the informed consent issue, as will become apparent on the following pages.
The case was argued before the Supreme Court of New Jersey on February 19, 1999; the unanimous decision was handed down on July 8 of the same year. How this extends the rights of the patient of alternative medical treatment in general (and chiropractic care in particular) should become immediately apparent from the following excerpts from the opinion of the Court:2,3
Clearly this opinion places a lot of pressure upon anyone rendering medical care. It should make the issue of continuing medical education paramount in any physician's agenda. By positioning informed consent as an indicator for "standard of care," it demands a far more acute level of awareness and appreciation of other health care options than previously. It also refutes any assumption on the part of physicians that they "know better" than to inform patients of all reasonable alternatives - invasive, noninvasive, and even no treatment at all - that are available. Finally, it is a call to arms to people in the research community to insure that results are adequately and clearly disseminated.
Thanks to this decision, the painstaking process of guidelines, which has led to the Mercy,4 AHCPR5 and CSAG guidelines in the U.K.,6 emerges with laurels. It represents a mainstreaming process by which the information that has been carefully gleaned over the past 25 years to validate chiropractic in the management of back and headache conditions becomes a matter of public record. Ignoring such information in clinical practice becomes virtually indefensible, if not tantamount to outright malpractice. Recent distorted accounts of low back care, such as what has emerged from the AMA7 or the Harvard Pilgrim Health Plan,8 become suspect on both legal and ethical grounds.
We have known for some time that measurements of satisfaction have traditionally been high for chiropractic patients,9 the scores significantly exceeding those found from the patients of allopathic physicians.10,11 A key determinant of this comparatively high level of patient satisfaction is the increased level of information shared with the patient.10,11 This finding should not in any way be taken as a reason for chiropractic practitioners to feel complacent; indeed, what was handed down in the New Jersey decision is as much a warning to providers outside of standard medical circles as it is to orthodox allopathic physicians.
The decision is, on the other hand, a major vindication for the rights of patients, the abilities of whom could not have been better expressed than by David Hess, a medical anthropologist at Rensselaer Polytechnic Institute, whose new book I recently had the pleasure of reviewing. In the concluding chapter of this excellent treatise, Hess provides what is virtually a populist manifesto, attesting to what has often been a vastly underestimated level of sophistication of the patient:
"Rather than being an amorphous mass of scientific illiterates, the public consists of pockets of strategically grounded literacy and illiteracy. Pockets of the public are capable of becoming quite literate in medical, environmental, and other scientific knowledge when the need arises."12
What greater need could there be than the patient's own well-being during a visit to a health care provider? Judge Pollock has made it clear that in today's information age, competent and ethical medical care should extend well beyond the opinions of the attending physician. Now more than ever therefore, the need has been shown to conduct and disseminate high-quality research.
1. Wilk et al. v American Medical Association et al. U.S. Federal Court, Northern District of Illinois, Eastern Division No. 76C3777. Getzendanner J, judgement dated August 27, 1987.
2. Jean Matthies v. Edward D. Mastromonaco,DO. Supreme Court of New Jersey [A-9-98]. Pollock J, judgment dated July 8, 1999.
3. Schroeder M. Acupuncture Today 2000;1(1):5,20.
4. Haldeman S, Chapman-Smith D, Peterson DM Jr. Guidelines for Chiropractic Quality Assurance and Practice Parameters. Proceedings of the Mercy Center Consensus Conference. Aspen Publishers, Inc. Gaithersburg, Maryland 1993.
5. Bigos S, Bowyer O, Braen G, et al. Acute Low Back Pain in Adults. Clinical Practice Guideline No. 14. AHCPR Publication No. 95-0642. Rockville, MD: Agency for Health Care Policy and Research, Public Health Service, U.S. Department of Health and Human Services, December 1994.
6. Rosen M. Back Pain. Report of a Clinical Standards Advisory Group Committee on Back Pain. London: HMSO, May 1994.
7. AMA editorial board. AMA's Pocket Guide to Back Pain. New York, NY: Random House, 1995.
8. Acute low back pain. Best Practice in Brief (Harvard Pilgrim Health Care Clinician Education Program) 1999;1(1).
9. Sawyer CE, Kassak K. Patient satisfaction with chiropractic care. Journal of Manipulative and Physiological Therapeutics 1993; 16(1):25-32.
10. Cherkin DC, MacCornack FA. Patient evaluations of low back pain care from family physicians and chiropractors. Western Journal of Medicine 1989;150:351-355.
11. Carey TS, Garrett J, Jackman A, McLaughlin C, Fryer J, Smucker DR. North Carolina Back Pain Project. The outcomes and costs for acute low back pain among patients seen by primary care practitioners, chiropractors and orthopedic surgeons. New England Journal of Medicine 1995;333(14):913-917.
12. Hess DJ. Evaluating Alternative Cancer Therapies. New Brunswick, NJ: Rutgers University Press, 1999, pp. 229-234.
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